Mcgean v. Metro. El. Ry. Co.

• Citation: 133 N.Y. 9,30 N.E. 647
• Parties: McGEAN v. METROPOLITAN EL. RY. CO. et al.
• Decision Date: 12 April 1892
• Court: New York Court of Appeals

133 N.Y. 9

30 N.E. 647

McGEAN

v.METROPOLITAN EL. RY. CO. et al.

Court of Appeals of New York.

April 12, 1892.

Appeal from superior court of New York city, general term.

Action by James H. McGean, as executor and trustee under the will of Delia Powers, against the Metropolitan Elevated Railway Company and the Manhattan Railway Company. From a judgment of the general term of the superior court of New York city awarding damages and an alternative injunction in favor of plaintiff, defendants appeal. Affirmed.

Davies & Rapallo, (Julien T. Davies, Brainard Tolles, and Alexander S. Lyman, of counsel,) for appellants.

Roger Foster, for respondent.

MAYNARD, J.

This action was brought July 19, 1889. The judgment appealed from restrains the defendants from maintaining an elevated railway structure on, or in front of, plaintiff's premises, known as ‘No. 15 1/2 Division Street,’ in the city of New York. The injunction is not to be operative if the defendants shall, within one month, elect to pay plaintiff the sum of $1,500, as and for the permanent damages to the fee of the premises sustained by him in consequence of the appropriation by the defendants of the use of the street for such a purpose. Upon payment or tender of such sum, the plaintiff is required to execute a conveyance of the property found by the decision to have been taken by the defendants, and, in case of failure to execute such conveyance, it is, in substance, provided that the judgment of injunction shall have no force or effect. Damages to the amount of $500 are also awarded for the injury to the property during the time intervening between June 10, 1887, and March 20, 1890. The rightfulness of this judgment is not questioned except upon a single ground. It was proven by the plaintiff upon the trial, and it has been found by the trial court, that after issue was joined, and on March 20, 1890, the plaintiff conveyed the premises to one Rosenbaum, for the consideration of $8,800. It is, for this reason, contended that plaintiff was not, at the time of the trial, entitled to any preventive relief with respect to these premises, and, in the absence of the right to such relief, that the court could not retain jurisdiction of the action for the purpose of awarding dumages for past injuries. It is undoubtedly true that the substantive cause of action in all such cases is the right to a prevention of the continuance of the trespass upon plaintiff's property by the defendants, but, when this right is established, the equitable jurisdiction of the court is complete, and it can award the injured party full compensation for all the damages sustained by the wrongful act sought to be enjoined, subject to the statutory limitations of time. It is equally true that, if there is no such right to a preventive remedy, the matter of damages for past trespasses cannot be the subject of inquiry in a court of equity. Relief must be sought in another forum. In this connection, it is to be observed that the defendants do not claim that the right to this kind of a remedy is extinguished by a transfer during the pendency of the action. Its existence is admitted, but it is asserted that it has been transferred by the plaintiff's own act to his grantee, and that the latter alone can prosecute the action. It would seem that in such a case section 756 of the Code of Civil Procedure would be a sufficient answer to such an objection. That section provides that, in case of a transfer of interest, the action may be continued by the original party, unless the court directs the person to whom the interest is transferred to be substituted in the action or joined with the original party, as the case requires. The action proceeds in the same manner as if the conveyance of the property, which is the subject of the controversy, had not been made, unless the court directs the grantee to be made a party. The question cannot properly be presented for the first time upon the trial of the action, but must be brought to the attention of the court, either by motion or by a supplemental pleading. If the defendant has not had the means of knowing that the plaintiff has parted with his title to the subject matter of the action until the fact is disclosed upon the trial, and he desires to have the new party in interest substituted for or joined with the original plaintiff, he can move to have the trial arrested until the necessary steps can be taken for that purpose, and the trial court can suspend the proceedings if, in the exercise of a sound discretion, it is satisfied that the adoption of such a course is necessary for the protection of the defendant. It is not seen how, ordinarily, the defendant is prejudiced by a transfer of the plaintiff's interest pendente lite, unless there is some question of the solvency of the parties involved. A judgment recovered against the original party would as effectually conclude his assignee after suit brought upon all the issues litigated as if the latter had been substituted in place of his assignor. The staute makes no distinction in this respect between actions at law and in equity, provided the cause of action is assignable. Story, Eq. Pl. § 156. This view does not militate against the rule which authorizes courts of equity, where they have once obtained jurisdiction of a cause, to administer all the relief which the nature of the case and the facts require, and to bring such relief down to the close of the litigation between ...